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Otherwise, according to petitioner, the deductibility of legal
expenses under section 213 would incorrectly depend on the
success of the litigation. Petitioner has not satisfied the
underlying requirement of a medical expense deduction as set
forth in Gerstacker v. Commissioner, 414 F.2d 448 (6th Cir.
1969), that the expense be an essential part of medical
treatment. Accordingly, it is not necessary for us to determine
whether, in the context of a medical expense deduction, the legal
proceeding must be successful for the taxpayer to deduct the
legal expenses. Because Daniel attended Eagle Hill even though
the school district did not contribute to the costs, it is far
from clear that the legal expenses in this case were essential to
obtain medical treatment. Obviously, Daniel could have attended
Eagle Hill without petitioner's instituting legal action against
the school district.
This case is distinguishable from Gerstacker v.
Commissioner, supra, because petitioner did not institute the
legal action to legitimate or authorize medical treatment for his
son. The barrier to medical care in Gerstacker was legal in
nature. However, in this case, there was no legal impediment to
Daniel's enrollment at Eagle Hill. The barrier to, or burden on,
the receipt of medical care was the financial cost of Daniel's
treatment at Eagle Hill. Petitioner argues that under the
reasoning of Gerstacker v. Commissioner, supra, the standard for
the deductibility of legal expenses should be whether a
reasonable person in petitioner's financial situation would have
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